Ben Leatherman v. Boston, City of - Police Department (SPR 20240314)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 15, 2024 SPR24/0314 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Francesca Guerriera, Paralegal, Special Projects Unit, at the Committee for Public Counsel Services (CPCS) appealing the response of the City of Boston (City) Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 26, 2023, Ms. Guerriera stated in her request: “Callyo and Pulse are applications used by the Massachusetts State Police (MSP) during investigations (particularly undercover buys) to transmit audio and video from officers interacting with defendants, to other state police officers. Specifically, we request: [1] All records, if any, containing or reflecting any rules, policies, procedures, criteria, or guidance regarding Callyo-enabled devices, Pulse software, and/or any similar applications; [2] All records, if any, containing or reflecting any training materials, recorded trainings, manuals, or handbooks regarding Callyo-enabled devices, Pulse software, and/or any similar applications; [3] All records, if any, containing or reflecting any contracts, agreements, procurement, budgeting, or expenditures regarding Callyo-enabled devices, Pulse software, and/or any similar applications; and [4] All records, if any, containing or reflecting data storage, evidence control, device management, officer use or device logs, authorized officer user lists, or audits regarding Callyo-enabled devices, Pulse software, and/or any similar applications. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Shawn A. Williams, Esq. SPR24/0314 Page 2 February 15, 2024 Communications between the Department and Ms. Guerriera On December 8th, the Department’s Assistant Corporation Counsel, James Jess Magee, emailed Ms. Guerriera, stating, “…please find attached the procurement documents we located concerning Callyo. As for the other pieces of your request, I am still searching for any responsive public records and will follow-up with you if/when I locate them.” In a January 8th email to Attorney Magee, Ms. Guerriera, wrote: “…I am circling back … I would like to clarify a few points... [A] The procurement document you sent seems to be [the Department’s] bid for a Callyo subscription. It looks like a contract for a Callyo subscription was contemplated. Was a contract ever secured? If not, can you please confirm that a contract was not secured in your response; [B] [I]f a contract was secured, can you please provide documentation that shows budgeting and expenditures for Callyo-enabled devices. If [the Department] does not have this documentation, please note so in your response; [C] [I]f a contract was secured, do you have records that show the names of the 25 authorized Callyo users and/or the cases in which they have used Callyo? If you do not have these records, please note so in your response; and [D] Was 2023 the first and only year that [the Department] bid for a Callyo subscription? After not receiving any further response and any additional records from the Department, on February 1, 2024, Ms. Guerriera petitioned this office, and as a result, this appeal was opened. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record.

Shawn A. Williams, Esq. SPR24/0314 Page 3 February 15, 2024 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In her February 1st petition, Ms. Guerriera raises two issues. First, regarding her Request No. 3, she states, “[t]he decision issued in Comm. v. Du, 103 Mass. App. Ct. 469; 219 N.E.3d 843 (2023) describes the [Department’s] use of Callyo; because of this we are confident that other records relevant to [R]equest [N]o. 3 exist. We believe we are entitled to these records.” Secondly, in her February 1st petition, Ms. Guerriera states, “[w]e have not received any records responsive to [Request No. 4]. We are likewise confident that records relevant to this request exist and we are entitled to them. Alternatively, we would like confirmation that these records do not exist.” The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The Department must clarify if it is in possession of additional records responsive to Ms. Guerriera’s Request No. 3, and whether the Department is in possession of records responsive to Ms. Guerriera’s Request No. 4. I encourage Ms. Guerriera and the Department to continue to communicate in order to facilitate producing records efficiently and affordably. The Department must use its knowledge of the records to facilitate providing any responsive records. See G. L. c. 66, § 10(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Order Accordingly, the Department is ordered to provide a response to the request in compliance with the Public Records Law and its Access Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If issues remain once Ms. Guerriera receives the response, she may file an appeal within 90 days. See 950 C.M.R. 32.08(1).

Shawn A. Williams, Esq. SPR24/0314 Page 4 February 15, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Ms. Francesca Guerriera, CPCS